By Benjamin Duerr
As Burundi becomes the first country to leave the International Criminal Court (ICC) this week, the withdrawal is a test case for the commitment of the international community to global justice. Will there be consequences for the country?
The first ever member state is about to leave the ICC silently. About a year ago the Burundian government decided to withdraw from the Rome Statute, the ICC's founding treaty. It notified the United Nations, where the treaty is deposited, and now, one year later on 27 October, the withdrawal comes into effect.
Burundi's withdrawal is particularly critical because the ICC had opened a preliminary examination to determine whether the court should intervene in the on-going political violence. Despite a constitutional two-term limit, president Pierre Nkurunziza decided seek a third term in April 2015. Since then, violent protests and repression by authorities killed hundreds and forced more than 418.000 people to flee the country.
The ICC's Office of the Prosecutor (OTP) has not requested permission from the judges to open a formal investigation. When the withdrawal takes effect this Friday, the ICC looses its jurisdiction. Only if it were to open an investigation before the withdrawal, the court could prosecute crimes committed in Burundi.
So far ICC prosecutor Fatou Bensouda has remained silent on the situation in Burundi. At her latest briefing of the diplomatic corps in The Hague earlier this month on the activities of her office, she did not mention the country.
Given the scope and gravity of the crimes, and compared to other countries, it could be a conscious decision to let Burundi go and instead focus on conflicts with quantitatively larger patterns of violence, such as Libya and the Central African Republic.
Letting Burundi leave could have a severe impact on the whole system, some say. Civil society organizations warned Burundi could set a precedent which undermines the ICC. “The Burundian case might suggest to other states that face (or will face) a preliminary examination that it would be sufficient to withdraw immediately from the Rome Statute so that the initiation of an investigation could be effectively avoided,” said the Burundian Coalition for the International Criminal Court.
While this point of view is understandable with regard to the ICC system, it ignores that other avenues at the international level remain open. For example, the Human Rights Council established the UN Independent Investigation in Burundi (UNIIB) and the Commission of Inquiry (CoI) on Burundi which published its final report recently. Both bodies documented grave human rights abuses and called on the international community – most notably the African Union, the Human Rights Council and the UN Security Council – to take action.
The response of the international community will be decisive for future withdrawals and will reveal its true commitment to the ICC and global justice in general. If the international community lets Burundi go silently and without consequences, the case might indeed set a precedent for others.
If governments would decide, however, to strengthen other bodies or step up their activities in the prosecution and prevention of international crimes in Burundi, it would send a clear signal that the decision to leave the ICC does not mean that accountability ends. The ICC is only one of several possible mechanisms after all.
The case of Burundi is a possibility to show that a withdrawal from the ICC does not mean a country can escape all justice.